ROMERO V. UNITED STATES, 68 U. S. 721 (1863)

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U.S. Supreme Court

Romero v. United States, 68 U.S. 1 Wall. 721 721 (1863)

Romero v. United States

68 U.S. (1 Wall.) 721


1. The Mexican archives are public records, which this Court has a right to consult, though not made formal proof by being put in evidence below.

2. Where there is no record evidence of the actual grant under a Mexican title, a claim will not be confirmed, even though the parol evidence of a grant is so strong that, independently of the fact that the archives show no grant, the conclusion might be that a grant had issued.

On the 28th February, 1853, three brothers, Innocencio, Jose, and Mariano Romero, presented their petition to the Board of Commissioners, established by the Act of Congress of March 3, 1851, for the settlement of private land claims in California, asking a confirmation of a land title. Their petition averred that Governor Micheltorena, in the year 1844 (no day being mentioned), granted them in full property a rancho in the neighborhood of the rancho of the Senors Moraga, Pacheco, and Will, being a remainder over and above what belongs to those ranchos -- the said land being in chanrobles.com-red

Page 68 U. S. 722

the County of Contra Costs -- and referred for a fuller description of the lands to papers and maps relating to the grant, "copies of some of said papers being herewith filed, and the originals to be produced and proved." The petition said nothing specially about the grant. There was no averment of its loss, and no profert of it as an existing paper; nor did it describe the land otherwise than above, nor mention the quantity. The commissioners entered a decree against the petition, declaring that "it does not appear that any grant was ever issued, . . . and no equitable right appears." On appeal to the district court, new evidence being allowed to be introduced there, the decree of the commissioners was affirmed. A motion was then made and granted to open the case, and allow the claimants to produce further evidence. The decree was accordingly stricken out and the additional evidence heard; after which the court (McAllister and Hoffman, JJ), affirmed the decision of the commissioners, and adjudged the claim invalid, and rejected it. It was from this decree that the case was now here. The title, as disclosed to this Court, was partly documentary and partly that of witnesses.

The first parcel of documentary evidence was thus:

1. A petition by the brothers Romero, claimants, dated January 18, 1844, soliciting a tract described as a surplus of the ranchos Moraga, Pacheco, and Will.

2. A marginal order of the same date, that the secretary of state report, "having first taken such steps as he may deem necessary."

3. A decree of the governor that the first alcalde of San Jose report, summoning Moraga, Pacheco, and Will, occupants of the adjoining ranchos, as above said.

4. Report, February 11, 1844, by the alcalde, that he had confronted the claimants with the owners of the adjoining lands, and they had no objections to the grant; that the tract was claimed by one Francisco Soto six or seven years before, but that he had not cultivated it in any way to gain a right thereto.

5. An unsigned certificate, February 4, 1844, that it would seem, according to the report just referred to, "that there is no chanrobles.com-red

Page 68 U. S. 723

obstacle to making the grant . . . if your Excellency approves of it."

6. A direction from the governor, without date, but "filed in office February 28th, 1853," that

"the judge of the proper district take measurement of the unoccupied land that is claimed, in the presence of the neighbors, and certify the result, so that it be granted to the petitioners."

7. Petition of Romero and the others to the governor, 21 March, 1854, that the governor grant them the land, either provisionally or as he deems best. [The petition stated that the judge had been unable to execute the order for a measurement, for the reason that the owners of the neighboring lands were absent or engaged, and that they enclose the former petition with report of the secretary of state.]

8. Report from Jimeno, 23 March, 1844, thus:

"I think that your Excellency's order should be carried into effect in regard to the measuring of the land that is claimed; and, as soon as this is accomplished with the least practicable delay, Senor Romero can present himself joined with Senor Soto, who says that he has a right to the same tract. Your Excellency's superior discernment will determine what is best."

9. Final decree of the governor, "Let everything be done agreeably to the foregoing report."

A second parcel of documentary evidence followed; the year of the date to papers in this parcel being three years posterior to the year 1844, in which all those just given were dated, and about a year after the conquest of California.

1. A marginal order, 9th April, 1847, from the American alcalde of San Jose (Burton), ordering that the

"interested parties will proceed to take possession of the mentioned lands, according to the order of government; and I further order that, in case any bordering land owner demanding it, a mensuration of his lands be ordered."

[N.B. This order was entered on the margin of an old order by Jimeno, secretary of state, dated 23 March, 1844, which the American alcalde found in the office after the conquest, directing a survey of the land solicited by Romero. This old order was addressed to the former alcalde.]

2. Petition, May 28, 1847, from Romero to the same alcalde of San Jose as follows:

"As early as the year 1844 there was

Page 68 U. S. 724

sent an order from the former government to this justice's court, that there should be made a mensuration of the land called Juntas, which we asked for. I, together with my brother, Innocencio Romero, after a previous summons of the bordering landowners, which up to the present time has not been carried out. What we now beg of you is that you will please, as first magistrate of this justice's court, to make out a report that we be given a testimonial of the reports which in the year '44 were sent to the government, so that we can be granted said lands."

[N.B. The original of the English words here italicized, "se nos podra agraciar," it was testified by an interpreter, did not mean that the land might at that time (1847) be granted, but referred to the past, and meant "should be granted to us," so referring to the contents of the papers made by the alcalde in 1844, and being words descriptive of those orders.]

3. Marginal order, same day, that the measurement be proceeded in according to the original direction.

4. Certificate, May 29, 1847, by the American alcalde, that Pico, the alcalde under the former government, being sworn and questioned on the subject of Romero, regarding the bordering landmarks, declared that Moraga and Pacheco declared that the surplus which does not belong to them might be granted to Romero.

The parol testimony, which related to a term between the dates -- 1844 and 1847 -- of the two classes of documentary evidence (the former date relating to the Mexican rule in California, and the latter that of the United States), consisted, in part, of that of witnesses, who testified to the fact of granting, and in part of others who stated that they had seen the grant: the most important witnesses to this last fact being three professional gentlemen in California.

1. As to the making and delivery of the grant.

Innocencio Romero, now having no interest, as he said, and who was twice examined, swore that he received the original title papers, including the grant, from the governor.

Arce, another witness and principal clerk under the secretary of the government, who drew up Romero's petition for the grant, swore that the governor ordered the title to be made out; that this was done by one of the two clerks, though chanrobles.com-red

Page 68 U. S. 725

he did not remember by which; that it was signed by Governor Micheltorena and Secretary Jimeno in 1844; though whether in spring, summer, autumn, or winter of that year he did not remember; that he saw both of them sign it, and that it was then delivered to Innocencio Romero, one of the grantees, and was "a complete concession in good and legal terms."

Vincente Gomez, a clerk in the government office at the time, swore that he knew of the application, and though he did not see the grant, he "knew afterwards that it was issued." When asked to state the means of his knowledge, he replied, "Because I used to take a note of the title in the Toma de Razon.'" When asked again, "Did you take a note of this title?" his reply was, "I do not remember distinctly, but I ought to have taken it."

Chavis that he aided Romero in obtaining the grant, introduced him to Arce, went with him to the government office to urge his application, and after it was obtained, saw and looked over the grant, and told the grantee that it was perfectly good -- that it was an absolute grant of land, under the genuine signatures of Micheltorena and Jimeno.

2. As to the subsequent existence of the title paper.

Ramon Briones swore that he saw the title in 1845; that it was produced by Romero in order to convince a neighbor that he had a title; that it was read aloud and had to it the genuine signature of Micheltorena.

Innocencio Romero stated that he being unwell and unable to go himself, he sent the papers to Mr. G. B. Tingley, an attorney at law, in San Francisco, for the purpose of having them submitted to the Land Commission.

Mr. Tingley was himself examined twice. On the first occasion he said in substance as follows:

"In 1850, there was a suit between Peralta, plaintiff, and I. Romero and Garcia, defendants, and on the trial there was read as evidence on the part of defendants a grant from Governor Micheltorena to the three brothers Romero for a tract of land &c. The grant was on Spanish paper, and was signed by Micheltorena as governor. The signature was genuine as I believe from having

Page 68 U. S. 726

seen his signature many times. The last I saw of the title papers they were in possession of a lawyer by name Sanford, partly deranged and now dead. No paper was safe in his hands. I have never heard of the grant since. I know Sanford had them at the conclusion of the trial. I have had repeated occasions to search for his business papers, and have never been able to find them."

Examined a second time, Mr. Tingley testified in substance, thus:

"I stated in my former examination, and I now say, that I carefully examined the original title papers in said cause; that the same were a bundle of papers commencing with the original petition, the informe &c., and ending with an absolute grant of the land. I have recently examined the Spanish documents, being seven in number [the papers in this case], and I say they are not the same papers. I was, at the time of the trial, perfectly familiar with Spanish grants; a large portion of my business was connected with the examination of Spanish titles. I was sufficiently familiar with the Spanish language at that time to read and understand titles to land, and I know that the title of the Romeros was a concession in fee for the sobrante. I examined the papers in the trial in the District Court of Santa Clara County, between Peralta, Garcia, and I. Romero, I being at the time one of the counsel for one of the parties, and also examined the papers at the instance of one Attoza; also for a person, by the name of J. M. Jones. During the trial the title papers, or what purported to be such, were in court during the whole time, four or five days. During the trial, I had them in my hands at least forty times. It was conceded on the trial, by Mr. Sanford and his associate counsel, that the land had been granted to the Romeros, but it was said that the grant was not valid, because the land had been previously granted to Peralta. The genuineness of the titles on both sides was not controverted by either party. Both were admitted to be genuine. The dispute was about the boundaries."

The Hon. J. W. Redmond, an attorney at law, and in 1850-1853 county judge of Santa Clara County, after confirming positively the statement of the last witness as to the use of the papers as genuine on the trial, testified as follows: chanrobles.com-red

Page 68 U. S. 727

"That he had seen many of the acknowledged signatures of Micheltorena, and was familiar with his handwriting from comparison; that his own principal business was the examination and investigation of Spanish titles; that he was employed in almost every case pertaining to Spanish titles in San Jose; that he was engaged on one side or the other in nearly every case, except in his own court, where there were lawsuits about Spanish titles; says further that in 1850, he was employed by one Attoza to search the title of the Romeros to the tract of land which is the subject of this suit; that said Attoza was about to purchase a portion; that he, the deponent, had all the original title papers of the Romeros in his hands at that time for two weeks, and carefully examined them; that the signature of Micheltorena to said documents was genuine, as the deponent believes from his familiarity with his said signature; that the grant was a grant in fee, in the usual form of Spanish concessions made by Micheltorena, and was on stamped paper; that deponent was perfectly familiar at that time with such Spanish documents; that he had examined very many Spanish titles at Monterey, Santa Cruz, San Jose, and Martinez, in all of which towns deponent practiced."

"The deponent further says that the title constituted a bundle of papers, sewed together, containing a petition by the three brothers Romero for the land, the reports of the alcalde Pico, also by Jimeno; also a diseno or map of the land, and a final concession by Micheltorena in full and absolute property of the land solicited; that the title was full and complete, with the exception that it lacked the approval of the Departmental Assembly; that the description of the ranch was the sobrante, or all the land lying between the ranches of Welsh, Moraga, and Pacheco, and the surrounding neighbors, and had a Spanish name, which deponent has now forgotten; but deponent says he was upon the land either in the latter part of 1850 or early in 1851; that he had his notes of the grant with him, or the grant itself, at the time he was on the ranch, and knew the land; that it was situated in Contra Costa County, and Garcia was living on the land at that time; and deponent stopped two nights and three days with him at his house."

"The deponent further says that he examined the title in connection with G. B. Tingley, Esq., and the Honorable J. M. Jones, now deceased, who was judge of the District Court of the Southern

Page 68 U. S. 728

District of California, and who was an excellent Spanish scholar; that all three pronounced the said title to be as valid and genuine a title as any in California, with the exception that it had not been approved by the departmental assembly; that it was a full and absolute concession of the land, and that upon the examination he advised Attoza that it was safe to purchase."

Mr. C. B. Strode, whose

"principal business, since November, 1850, had been the prosecution of Mexican and Spanish land claims before the United States Land Commission, and in some cases before the United States courts,"

testified thus:

"In 1850, Mr. Sanford told me he had the Romero grant in his possession. I know the situation of the land by general description and by having been often on it. He showed me a paper for a grant of a sobrante. I was the lawyer of several of the adjoining settlers, and expected to be that of others, which made me feel an interest in the examination of this paper. I had become very familiar with the appearance of Spanish and Mexican grants, and knew, as far as I could know by comparison with others, the handwriting of Jimeno and Micheltorena, and could not, I think, have been deceived as to the genuineness of their signatures, although I never saw either of them write. I know that the signature of Mitcheltorena was to the papers, and I believe also that of Jimeno. I have examined the papers in this case. They are not the papers shown me by Mr. Sanford. My interpreter read the papers carefully to me. They consisted of a good many papers sewn together on the back, and purported to be a full grant for land lying &c. -- a sobrante described to be of four or five leagues; I believe five."

Due proof was made of search among Sanford's papers in vain for those described by these gentlemen.

With regard to the possession, it appeared that one or other of the Romeros -- Innocencio being the chief actor in all parts of the business -- went on the property in 1843 or 1844, and had occupied it continuously afterwards, building upon and cultivating it.

On the other hand, confessedly no actual grant was produced, the whole case resting upon the documents above-mentioned, chanrobles.com-red

Page 68 U. S. 729

produced, some of them, from the alcalde's office, and some from the claimant's private possession; upon the parol proof of the former existence and later loss of the grant not produced, and upon the possession. The Toma de Razon, at one time supposed to be lost, was produced on the hearing in this Court, and it showed that there was no record in it of the alleged grant; nor did it appear in the Index of Jimeno. So, Innocencio Romero, though he swore positively, on his first examination, that "the tract was granted to me and my brothers by Governor Micheltorena," and that the "grant" was among the papers sent to counsel in San Francisco, yet on a second examination swore less specifically. On this second examination he said:

"These papers consisted of the title papers given to me by the governor. . . . The papers were loose, without being sewn together. I do not know whether the lawyer sewed the paper together or not."

The following were questions and answers in his deposition:

"Question. What did the title papers, so handed to Tingley, consist of?"

"Answer. The title papers pertaining to the grant given to me by the governor."

"Question. What title papers were given to you by the governor?"

"Answer. The title papers, with all the different papers usually issued at the government office. I cannot describe the number."

"Question. Were there several papers; if so, how many?"

"Answer. There were several papers, such as the map, petition, informe, and decrees."

"Question. In what month was it that you say you obtained the grant?"

"Answer. I cannot say exactly, but I think it was March."

"Question. Do you recollect of Soto petitioning for the same land as yourself; if so, was the difference between you and him settled before you obtained your grant, and how was it settled?"

"Answer. Soto made a petition for the same land I did. The difference was settled before I obtained my grant. Soto and myself were called in the presence of Micheltorena, and as Soto

Page 68 U. S. 730

was already in possession of the rancho San Lorenzo, and as he had petitioned also for the Juntas, Micheltorena told him that he should have the San Lorenzo, and in that case he would grant the Juntas to the Romeros; and this was the way the difference was settled, both being satisfied with the governor's decision."

It appeared, also, that on the 15th January, 1847, more than four months before the date of the last certificate, Jose Romero, one of the three brothers, and one Garcia had appeared before the same American alcalde and certain witnesses, and that Romero conveyed one-half the land to Garcia

"Que dando hambor sujetos a que si el gobierno lo consede en propiedad y de lo contrario perdera gracia lo mismo q. Romero sin tener accion de clamar el dinero dado,"

or, as translated in the record,

"both parties remaining subject to that, if the government grant it in ownership and in a contrary case, Garcia will lose equally with Romero without having cause of action to reclaim the money given."

So that same Jose Romero, when now examined, though he swore to having seen the petition, and that a decree to measure was obtained, swore also that he had not obtained a grant of it, "no title at all."

On the other hand again, the same witness testified that he could neither read nor write; that his brother Innocencio had the charge of all the business; that he did not know whether his brother had built a house on the tract or not; that two or three years would pass without his seeing him; that he "heard that a title had issued," but felt no interest in it because he had sold whatever right he had, and that he knew his brother had not a title, "because I have not seen it." chanrobles.com-red

Page 68 U. S. 737


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